t. It bore in fact exactly the same
relation to the Testament, which the deed leading the uses bore to the
Fines and Recoveries of old English law, or which the charter of
feoffment bore to the feoffment itself. Previously, indeed, to the
Twelve Tables, no writing would have been of the slightest use, for
the Testator had no power of giving legacies, and the only persons who
could be advantaged by a will were the Heir or Co-heirs. But the
extreme generality of the clause in the Twelve Tables soon produced
the doctrine that the Heir must take the inheritance burdened by any
directions which the Testator might give him, or in other words, take
it subject to legacies. Written testamentary instruments assumed
thereupon a new value, as a security against the fraudulent refusal of
the heir to satisfy the legatees; but to the last it was at the
Testator's pleasure to rely exclusively on the testimony of the
witnesses, and to declare by word of mouth the legacies which the
_familiae emptor_ was commissioned to pay.

The terms of the expression _Emptor familiae_ demand notice. "Emptor"
indicates that the Will was literally a sale, and the word "familiae,"
when compared with the phraseology in the Testamentary clause in the
Twelve Tables, leads us to some instructive conclusions. "Familia," in
classical Latinity, means always a man's slaves. Here, however, and
generally in the language of ancient Roman law, it includes all
persons under his Potestas, and the Testator's material property or
substance is understood to pass as an adjunct or appendage of his
household. Turning to the law of the Twelve Tables, it will be seen
that it speaks of _tutela rei suae_, "the guardianship of his
substance," a form of expression which is the exact reverse of the
phrase just examined. There does not therefore appear to be any mode
of escaping from the conclusion, that, even at an era so comparatively
recent as that of the Decemviral compromise, terms denoting
"household" and "property" were blended in the current phraseology. If
a man's household had been spoken of as his property we might have
explained the expression as pointing to the extent of the Patria
Potestas, but, as the interchange is reciprocal, we must allow that
the form of speech carries us back to that primeval period in which
property is owned by the family, and the family is governed by the
citizen, so that the members of the community do not own their
property _and_ their fami